CIVIL REVIEW 15195 OF 2024 scanned

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM CIVIL REVIEW NO. 15195 OF 2024 (Arising from the Order dated 29th May 2024, in Land Appeal No. 9914 of2024 Hon. Msaftri. J,) JOSEPH KASMIR KANJE............................................. APPLICANT VERSUS BEATRICE A. CHALAMILA.................................. 1st RESPONDENT SALUM ALLY MSENGI.......................................... 2nd RESPONDENT RULING Date of Order: 20/08/2024 Date of Ruling: 10/09/2024 A.MSAFIRI, J, On 29th May 2024, this court struck out with cost the Land Appeal No. 9914 of 2024 following the 1st respondent's preliminary objection on point of law that the appeal is time barred. The applicant aggrieved by said decision, lodged an application for review and filed a memorandum of review with three grounds as follows: - 1. THA T, the order striking out the appeal filed on the 3d of May, 2024 is tainted with errors apparent on the face thus the appeal was not filed out of time. 2. THA T, by referring to the conventionally filed documents in reckoning the date of filing the appeal instead of > electronically filing of the appeal, is a mistake oftaw by the /yjj court. i 3. THAT, the Applicant has discovered an important evidence which could not be produced at the time of hearing of the preliminary objection. Hearing of this review was done by way of written submissions and the applicant was represented Mr. Litete, Haji learned counsel while the 1st respondent was represented by Mr. Joseph Assenga learned counsel and the 2nd respondent did not enter appearance. In his submission, Mr. Haji argued that the decision sought to be reviewed has criteria of being reviewable as there is existence of mistake and errors of the decision apparent on the face of records, and discovery of new and important evidence which could not have been produced at the time of hearing of preliminary objection. The learned advocate submitted that in Land Appeal No. 9914 of 2024, the decree appealed against was signed and issued on 21st March 2024. That, counting 45 days for the day of issuance of the copy of decree, the last date upon which the appeal had to be filed falls on 4th May 2024. Mr Haji stated that, the appeal was admitted and filed on the 3rd May, 2024 as per exchequer receipt which could not be produced at a time of hearing of preliminary objection. And thus there was error of the court apparent on the face of record by inserting 23rd May 2024 in the conventional filed documents instead of 3rd May 2024. > c 2 The counsel for the applicant submitted further that according to Rule 8 of the Judicature and Application of Laws (Electronic Filing) Rules, G.N. No. 148 of 2018, all documents are required to be filed electronically. The learned counsel made further reference to the Court's decision in Camel Oil (T) Ltd vs Bahati Moshi Masabile & Bilo Star Debt Collectors, Civil Appeal No. 46 of 2019; Misungwi Shilumba vs Kanda Njile. (PC) Civil Appeal No. 13 of 2019 and John Chuwa vs Anthony Ciza [1992] TLR 233. He argued that the Land Appeal No. 9914 of 2024 was filed on time, thus the order to strike out the same was a mistake of law and an error apparent on the face of record. Lastly he prayed to the court to set aside and restore the appeal. In reply Mr. Assenga stated that, the Land Appeal No. 9914 of 2024 was out of time as it was filed on 23rd May 2024, and that the applicant delayed for 19 days. He pointed that the date of filing of any document or pleadings it be an application or appeal is a date on which the court filing fee is paid as it appears on the exchequer receipt and not on date of admission of the documents in the Registry. He added that the Judicature and Application of Laws (Electronic Filing) Rules, GN. No. 148 of 2018, do not change or alter the position as to when a document is deemed to be filed in court. To cement his points, the learned counsel for the 1st respondent made reference to the case of ETG Commodities Ltd vs? 3 Mohamed Enterprises (Tanzania) Limited, Civil Appeal No. 263 of 2020, HC (Unreported). The learned counsel argued that the court was just in striking out the Land Appeal No. 9914. Having heard the rival submission by both parties, the issue is whether the review has merits? Section 78 (1) and Order XLII Rule 1 of the Civil Procedure Code, [Cap 33 R.E 2019], provides that:- "'l.-(l) any person considering himselfaggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply fora review ofjudgment to the court which passed the decree or made the order". I 4 According to the above cited provisions, there are (3) conditions for the review of decision or order; First, it must be established that there is a discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order was made; Two, where it is established that there is some mistakes or errors apparent on the face of the record; and three, there is any other sufficient reason for the court to review its decree or order made. This three conditions were emphasised in the case of Golden Globe international Service and Another vs Millicom (Tanzania) N.V. and Another, Civil Application No. 195/01 of 2017. I have revisited the impugned ruling in Land Appeal No. 9914 of 2024 whereby the court struck out the appeal for being incompetent as it was filed out of time. The applicant in his submission has contended that the impugned decision of the court is a manifest error or mistake apparent on the face of record. According to the counsel for the applicant, the intended appeal was filed on 3rd May 2024 and not on 23rd May 2024 as alleged by the counsel for the 1st respondent. The impugned decision of the trial Tribunal in Application No. 220/2018 was delivered on 28th February, 2024 and the said decision was ready for collection on 21st March, 2024. jV/ / 5 After the applicant received the copy of the decision of the trial Tribunal, he filed his appeal in this court through online system on 3rd May,2024 in the Case Management System as per the provisions of the Judicature and Application of Laws (Electronic Filing) Rules, G.N. No. 148 of 2018 which requires all documents to be filed electronically. The payment was done through billing reference JUD2024050380513 Billed Item: Court fee: For Filing Memorandum of Appeal with Control Number: 991401108407 which was issued on 03rd May, 2024. Counting from the day when the applicant was supplied with a copy of judgment on 21st March, 2024 to 3rd May 2024, there is total of 44 days. The time limit for filling appeal from the District Land and Housing Tribunal is 45 days as provided for under Section 41 (2) of the Land Disputes Courts Act, [Cap 216 RE 2019]. Due to necessity of attaching the copy of decree of the impugned decision as it is mandatory, filling of appeal starts to count on the date the copy of impugned decree is extracted by automatic exclusion as provided under Section 19 of the Law of Limitation Act, Cap 89 R.E 2019 and reiterated and further elaborated in the case of Alex Senkoro 8i 3 others vs. Eiiambuya Lyimo, (As administrator of the Estate of Frederick Lyimo, deceased), Civil Appeal No. 16 of 2017, CAT at DSM (Unreported). 6 I am inclined to agree with the counsel for the applicant that the court mistakenly recorded that the appeal was filed on 23rd March 2024, but according to digital file available in Case Management System-Judiciary (CMS) it is indicated clearly that the Land Appeal No. 9914 of 2024 was filed on 03rd May 2024 and payment was effected on the same day. Therefore, Land Appeal No. 9914 of 2024 was filed within time. I join hands with submissions of both counsels that the remedy for an appeal which is time barred is dismissal as per Section 3 of Law of Limitation Act [Cap 89 RE 2019], not strike out as it is ruled in Land Appeal No. 9914 of 2014. In the circumstances, I find the grounds in the memorandum of appeal to have merit. I grant the application, and set aside ruling and order which emanates from Land Appeal No. 9914 of 2024 before this court. The said Land Appeal is hereby restored without costs. 7